QuickTake:

U.S. District Judge Ann Aiken said the lack of a clear standard “reasonable” to all led her to block enforcement of the rule that prohibits “loud or unusual noise” outside the building, which has been a hub of anti-ICE protests. The rule is being challenged by two Eugene activists.

Enforcement by federal officers of a “loud or unusual noise” rule at the Eugene Federal Building so far has lacked a clear standard, according to a judge’s opinion issued Monday, March 2.

The opinion and order from U.S. District Judge Ann Aiken follows her Feb. 20 ruling from the bench granting a preliminary injunction sought by protesters. The order Monday also makes clear that the temporary ban on enforcing the rule only applies at the downtown Eugene site, not all federal properties.

At issue is one provision in a set of fast-tracked rules for the protection of federal buildings which took effect last November. The provision expanded rules about prohibited activity beyond the interior of federal properties.

Attorneys representing government officials have argued the noise rule “serves to balance the right to engage in political speech with the need to allow continued functioning of government services.”

At the Feb. 20 hearing, they presented evidence that included statements from IRS employees at the Eugene Federal Building that noise affected their interactions with taxpayers.

But Aiken’s order and opinion, while not final, is a legal victory for two protesters, Anna Lardner and co-plaintiff Chloe Longworth, who frequently demonstrate against immigration enforcement activity at the downtown Eugene site. The building houses offices for multiple federal agencies, including a U.S. Immigration and Customs Enforcement office.

In their lawsuit filed last December, Lardner and Longworth contend that the rule prohibiting “loud or unusual noise” from the sidewalks of federal buildings has led to them being targeted, and that the rule chills free speech protected by the U.S. Constitution.

The Eugene-based Civil Liberties Defense Center, which represents Lardner and Longworth, seeks a hearing to argue the rule should be blocked everywhere, calling it “unconstitutional.”

Aiken, however, in her ruling cited in part how the federal building site “has been the traditional center of protest activity” in Eugene. 

The judge also referred to sidewalks being a “traditional public forum,” meaning areas traditionally open to political speech where speakers have strong free speech rights.

However, in her ruling Aiken added that “while all public sidewalks are traditional public forums, not all sidewalks set the same intuited standards of behavior,” noting the differences between a downtown sidewalk near four-lane roadways and sidewalks in residential neighborhoods.

“This injunction is not nationwide, nor district-wide, or even city-wide,” Aiken said in the ruling, stating that the preliminary injunction is “limited to the enforcement of the Noise Provision on particular public sidewalks.”

‘Not convinced’

The preliminary injunction means that Aiken found evidence that the challenge by Lardner and Longworth is “likely” to succeed.

About the statements made by IRS employees working at the federal building, Aiken wrote that their reports “are individuals’ subjective experiences, and even those are written in very general terms.”

“For example, one IRS employee says protesters ‘are disruptively noisy[,]’ ‘extremely disruptive to business with taxpayers[,]’ and that ‘the ruckus’ is ‘certainly captured’ on audio recordings the employees make of their interactions,” Aiken wrote.

But, she wrote, “the Court is not convinced that a reasonable person protesting on a sidewalk next to a government building is on notice that recordings are taking place and should know to act accordingly.”

While government attorneys had argued that the rule explicitly referred to noise that is a “nuisance,” Aiken cited “the lack of an objective standard in the Noise Provision,” as she referred to the rule. 

The concern about vagueness “must be coupled with the enforcement context — now including high-traffic public sidewalks abutting four-lane roads — which does not lend itself to readily deducible inferences with a ‘high degree of accuracy’ about what is and is not expected behavior,” Aiken wrote.